Former police officer battles his elderly mother over land

Chuka Law Courts.

Photo credit: File

An 85-year-old woman and her granddaughter in Tharaka Nithi district are pondering their next move after losing a court case over a quarter-acre of land where they have lived for more than 15 years.

Maureen Mwende, 25, and her grandmother Mary Ciambaka failed to convince the Lands court that the parcel belonged to her mother and not her uncle Alex Kinyua. Kinyua is a retired police officer.

Mwende and Ciambaka now face eviction.

Last month, the Lands court ruled that the land, which is in Kathigiiri village on the outskirts of Chuka town, belongs to Kinyua.

After four years of legal battle, Ciambaka and Mwende got a brief reprieve last year after winning the case in a magistrate's court, but Kinyua appealed at a higher court, which overturned the ruling.

Having sold all her property to pay for lawyers during the magistrate's court case, Ciambaka could not afford to hire a lawyer at the higher court, but Kituo cha Sheria offered her pro bono legal services after reading about her challenges in a story published by Nation.Africa.

During the hearing, Mwende told the court that on September 4, 2004, her late mother Lily Karoki bought a piece of land from Patrick Nthiga for Sh160,000 and by the time she died on March 5, 2007, she had paid Sh131,000, leaving an outstanding balance of Sh29,000.

She narrated that after Nthiga said that her mother's body could not be buried on the land until the outstanding balance was settled, Ciambaka, who was aware of the transaction, sent her first-born son, Kinyua, with Sh29,000 to settle with the seller.

She added that her uncle colluded with the seller and registered the land in his name, but Kinyua denied the allegations, saying he was not even aware that his late sister had bought the land.

He said he bought the land from Nthiga for Sh300,000 on August 22, 2006 while her sister died much later on March 7, 2007.

In his ruling, judge Charles Yano said according to the agreement between Nthiga and Karoki, she was supposed to clear the payment by March 30, 2005 and by the time she died, she had defaulted for almost two years.

He noted that according to the documents, Kinyua paid all the money upfront and the land was transferred to him and a title deed was issued in his name while his sister was still alive.

The court noted that when Kinyua bought the land, Nthiga had the right to enter into another sale agreement because Karoki had defaulted and the former had no obligation to inform his sister before buying the land.

The judge said the evidence on record showed that Karoki did not complete the purchase of the land and there was no evidence that the Sh29,000 was paid within the stipulated time as per the agreement.

"I am of the view that the decision of the trial court was not justified in the circumstances of this case. In my view, the learned magistrate never fully considered the issues raised in the application and arrived at an erroneous decision," Justice Yano said.

He said Mwende had an alternative prayer asking the court to order Nthiga to refund the purchase price with interest at bank rates from September 4, 2004 until payment in full.

The lower court's judgment was set aside and Nthiga was ordered to refund Mwende the sum of Sh131,000 with interest at court rates from 4 September 2004.

A shocked Ciambaka now says that with nowhere else to go and neither she nor the granddaughter having money to buy another piece of land, she will move to the streets of Chuka town, but with the remains of her daughter, while Mwende finds her next home.

"I have no money to appeal against the decision at the Court of Appeal in Nyeri. I am now left with the option of moving to the streets of Chuka town but with the remains of my daughter because before she died, she asked me to take care of her daughter while she was in this country," Ciambaka told Nation.Africa in an interview at her home in the disputed land.

She called on leaders and friends to intervene in the matter so that Mwende can own the land she believes belongs to her late daughter.

Residents have been divided on the issue, with some arguing that Kinyua should hand over the land to his mother and niece even if he legally acquired it, while others argue that he should only allow his aged mother to continue living there.

Others blame Kinyua, arguing that in African culture, children are expected to take care of their elderly parents.